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to be apprehended by a prudent and competent man. This principle nowhere has been more fully recognized than by this court. Lawrence v. Minturn, 17 How. 100, 110; The Star of Hope, 9 Wall. 203. But it is a mistake to say, as the petitioner does, that if the man on the spot, even an expert, does what his judgment approves, he cannot be found negligent. The standard of conduct, whether left to the jury or laid down by the court, is an external standard, and takes no account of the personal equation of the man concerned. The notion that it "should be coextensive with the judgment of each individual," was exploded, if it needed exploding, by Chief Justice Tindal, in Vaughan v. Menlove, 3 Bing. N. C. 468, 475. And since then, at least, there should have been no doubt about the law. Commonwealth v. Pierce, 138 Massachusetts, 165, 176. Pollock, Torts, 7th ed., 432.

The foregoing statement, abridged from that of the District Court, which was accepted by the Circuit Court of Appeals, is sufficient to present the question which we have to discuss, if we add the finding of the latter court that after the Germanic was made fast she was given in charge of the shore agents of the owners and that they alone assumed direction of the discharging and loading of cargo and prepared her for the return voyage. The question is whether the damage to the cargo was "damage or loss resulting from faults or errors in navigation or in the management of said vessel," as was set up in the answers, in which case the owner was exempted from liability by 3 of the Harter Act, or whether it was "loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery" of merchandise under § 1 of the same, in which case he could not stipulate to be exempt. The second section also recognizes and affirms. the "obligations" "to carefully handle and stow her cargo, and to care for and properly deliver the same." Act of February 13, 1893, c. 105, 27 Stat. 445.

The petitioner contends that any dealing with the ship or cargo which affects the fitness of the ship to carry her cargo is

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"management of the vessel," within the meaning of § 3. To support this contention the case of The Glenochil [1896], Prob. 10, is cited. There, after the arrival of the vessel in port and while she was unloading, the engineer, in order to stiffen the ship, let water into a ballast tank, and did it so negligently that the water got to and injured the cargo. The damage was held to result from fault in the management of the vessel within 3, and the shipowner was held exempt. See The Silvia, 171 U. S. 462. We see no reason to criticise this decision, and therefore lay on one side at once the fact that the vessel had come to the end of her voyage and was in dock. We assume further that the captain retained authority over his ship, so that it was his power and perhaps his duty to intervene in any case that needed his control. On these assumptions the argument is that cargo has also a function as ballast, that if, for instance, the loss is caused by the improper shifting of pigs of lead, it does not matter whether they are called ballast or cargo, but in either case, so far as the change affects the fitness of the ship as a carrier, it is management of the vessel within the act. The thing done is the same and the name of the object cannot affect the result.

Nevertheless, in a practical sense, the ship was not under management at the time, but was the inert ground or floor of activities that looked not to her, but to getting the cargo ashore. And this consideration brings to light the limitation of the section, adopted by the court in The Glenochil, and sanctioned by this court in Knott v. Botany Mills, 179 U. S. 69, 73, 74, to faults "primarily connected with the navigation or the management of the vessel and not with the cargo." [1896] Prob. 15, 19. In the case supposed the name given to the pigs of lead is not important in itself, to be sure, but may indicate a difference in the purpose and character of the change of place. If the primary purpose is to affect the ballast of the ship, the change is management of the vessel, but if, as in view of the findings we must take to have been the case here, the primary purpose is to get the cargo ashore,

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the fact that it also affects the trim of the vessel does not make it the less a fault of the class which the first section removes from the operation of the third. We think it plain that a case may occur which, in different aspects, falls within both sections, and if this be true, the question which section is to govern must be determined by the primary nature and object of the acts which cause the loss.

A distinction was hinted at in argument based on the fact that the damage was not to the cargo removed, but to that left behind in the ship. If the damage was attributable to negligence in unloading, it does not matter what part of the cargo is injured. The fact referred to does bring out, however, that the negligence in removing the cargo was negligence only because of its probable effect on the ship, and was negligence towards the remaining cargo, only through its effect on the ship. But, although this may be conceded, the criterion which we have given is undisturbed. That "in" which, as the statute puts it, the fault was shown was not management of the vessel, but unloading cargo; and, although it was fault only by reason of its secondary bearing, the primary object determines the class to which it belongs.

It is settled by repeated decisions that the Harter Act will be applied to foreign vessels in suits brought in the United States. The Scotland, 105 U. S. 24; The Chattahoochee, 173 U. S. 540. The claimant sets up the act and relies upon it. Under the cases it must take the burdens with the benefits, and no discussion of the terms of the bills of lading, if they might lead to a greater limitation of liability, is necessary. Knott v. Botany Mills, 179 U. S. 69; The Kensington, 183 U. S. 263, 269. Some of the bills of lading in evidence contain a clause to the further effect that the shipowers, if liable for a loss capable of being covered by insurance, shall have the benefit of any insurance on the goods. But these bills of lading were for transport to Liverpool, and while they provided for forwarding the goods at ship's expense to New York, the forwarding was to be on bills of lading issued by

196 U.S.

Argument for Appellants.

the steamer sailing to that port, and subject to the stipulations, exceptions and conditions in those bills. We see no occasion to consider the questions which might be raised if the same stipulations were contained in the bills of lading to New York. See Liverpool Steam Co. v. Phenix Insurance Co., 129 U. S. 397, 463; Inman v. South Carolina Ry., 129 U. S. 128; Phenix Insurance Co. v. Erie & Western Transportation Co., 117 U. S. 312.

Decree affirmed.



No. 244. Argued November 29, 30, 1904-Decided February 20, 1905.

A railroad company in Kentucky claimed as its only ground of Federal jurisdiction in an action in the Circuit Court of the United States against members of the state board of valuation and assessment that under the tax laws of the State it was deprived of equal protection of the laws contrary to the Fourteenth Amendment, because while the law of the State required all property to be taxed at its fair cash value there was a uniform and general undervaluation of other property but the company's property was taxed at its full value. There was conflicting testimony as to the valuations, most of the members of the board testifying that they tried in good faith to reach fair cash values. Held, that: The court will not intervene merely on the ground of a mistake in judgment on the part of the officer to whom the duty of assessment was entrusted by the law.

It is not beyond the power of a State, so far as the Federal Constitution is concerned, to tax the franchise of a corporation at a different rate from the tangible property in the State.

Where the only constitutional ground on which the complainant can come into the Circuit Court obviously fails the court should be very cautious in interfering with the State's administration of its taxes upon other considerations which would not have given it jurisdiction.

THE facts are stated in the opinion.

Mr. Wm. O. Davis and Mr. Henry L. Stone, with whom Mr. Napoleon B. Hays, Attorney General of the State of Kentucky, was on the brief, for appellants:

Argument for Appellants.

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The Circuit Court had no jurisdiction of this action. The state board had made the final assessment of appellee's franchise, and the auditor had given appellee the statutory notice thereof, and it is not shown that appellants, being the auditor, treasurer, and secretary of state, constituting said board, had any further statutory power or authority to enforce the collection of the unpaid part of the state taxes on said assessment. Hence, appellee's suit was against the State without its consent, and in violation of the Eleventh Amendment. Louisiana v. Jumel, 107 U. S. 711; Ex parte Ayres, 123 U. S. 443; Hans v. Louisiana, 134 U. S. 1; Coulter v. Weir, 127 Fed. Rep. 897; Fitts v. McGhee, 172 U. S. 516; Arbuckle v. Blackburn, 113 Fed. Rep. 616.

The bill alleges that the amount in controversy in this action, without considering the local taxes, exceeds $2,000, but there is no allegation stating the amount or value of the local taxes due the counties, cities, towns, and taxing districts exceed the sum of $2,000. Walter v. Northwestern Railroad Co., 147 U. S. 370; Fishback v. Western Union Telegraph Co., 161 U. S. 96; Coulter v. Fargo, 127 Fed. Rep. 912.

There being no diverse citizenship between the parties, the bill does not show jurisdiction in the Circuit Court, on account of the alleged denial of the equal protection of the laws within the meaning of the Fourteenth Amendment. Nash., Chatt. & St. L. Ry. v. Taylor, 86 Fed. Rep. 168; R. R. & Telephone Co. v. Board of Equalization, 85 Fed. Rep. 302; Taylor v. Louisville & Nashville R. R. Co., 88 Fed. Rep. 350; Louisville Trust Co. v. Stone, 107 Fed. Rep. 305; Cummings v. Merchants National Bank, 101 U. S. 153; Albuquerque Bank v. Perea, 147 U. S. 87. The proof shows the assessment of appellee's franchise had become final before this action was instituted.

The bill as amended does not state facts sufficient to entitle complainant to any relief in equity.

The allegation in the amended bill that said assessors 'uniformly" assessed such property below its value for the year 1902 is not sufficient to bring this case within the rule

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